U.S. v. Spero

• Decision Date: 20 May 2003
• Docket Number: Docket No. 02-1256.
• Citation: 331 F.3d 57
• Parties: UNITED STATES of America, Appellee, v. Anthony SPERO, Defendant-Appellant, Joseph Bissada, also known as Quaddafi; Christopher Labate, also known as Chris AM; Robert Patterson; Joseph Pontecorvo, also known as Joe Pont; Michael Pontecorvo, also known as Michael Pont; Joseph Benanti; Charles Calco; Joseph Calco, Fabritzio Defrancisi, also known as Fabrizzio; Joseph Dellatorre, also known as Little Joey; Christian Ludwigsen, also known as Chris Paciello, also known as Binger; Michael Yammine; James Calandra; William Galloway, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

Page 57

331 F.3d 57

UNITED STATES of America, Appellee, v. Anthony SPERO, Defendant-Appellant Joseph Bissada, also known as Quaddafi; Christopher Labate, also known as Chris AM; Robert Patterson; Joseph Pontecorvo, also known as Joe Pont; Michael Pontecorvo, also known as Michael Pont; Joseph Benanti; Charles Calco; Joseph Calco, Fabritzio Defrancisi, also known as Fabrizzio; Joseph Dellatorre, also known as Little Joey; Christian Ludwigsen, also known as Chris Paciello, also known as Binger; Michael Yammine; James Calandra; William Galloway, Defendants.

Docket No. 02-1256.

United States Court of Appeals, Second Circuit.

Argued: February 12, 2003.

Decided: May 20, 2003.

Amended: May 29, 2003.

John W. Mitchell, New York, NY, for Defendant-Appellant.

Greg D. Andres, Assistant United States Attorney (David C. James, Assistant United States Attorney, of counsel, Roslynn R. Mauskopf, United States Attorney, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: CABRANES and F.I. PARKER, Circuit Judges, and KAPLAN,^* District Judge.

JOSÉ A. CABRANES, Circuit Judge.

After a jury trial in the United States District Court for the Eastern District of New York (Edward R. Korman, Chief Judge), defendant Anthony Spero was found guilty on a one-count indictment of conspiracy to commit racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). The Government presented evidence from which the jury determined that Spero, while conducting the affairs of the Bonanno Organized Crime Family, conspired in violation of 18 U.S.C. § 1962(d) to engage in at least two of five specifically enumerated racketeering acts prohibited by 18 U.S.C. § 1962(c)—namely three murders, management of an illegal gambling enterprise, and loansharking.

The jury returned a verdict of guilty on April 5, 2001. Spero filed a motion for a judgment of acquittal under Fed.R.Crim.P. 29(c) on August 23, 2001, asserting, inter alia, (1) that the lone RICO conspiracy count under which he was tried and convicted was barred by the five-year statute of limitations and (2) that the indictment under which he was charged was insufficiently specific. The District Court held oral argument on that motion on December 14, 2001 and rejected Spero's claims in an unpublished order dated April 15, 2002. The Court stated only the following:

The motion is denied. The statute of limitations argument on which the oral argument focused is foreclosed by Second Circuit precedent. See e.g. U.S. v. Salerno, 868 F.2d 524, 534 (2d Cir.1989). The remaining grounds are without merit.

The Court sentenced Spero primarily to life in prison and entered a final judgment on April 19, 2002. On appeal, Spero renews the two claims described above. We affirmed in a summary order filed February 28, 2003, which we hereby withdraw; we now publish this opinion in its place.

I. Statute of Limitations Claim

Spero contends that the lone RICO count under which he was tried and convicted was barred by the five-year statute of limitations governing RICO prosecutions. See 18 U.S.C. § 3282 ("[N]o person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found ... within five years next after such offense shall have been committed."). The original indictment in this case was returned on May 25, 1999. Thus, in order for this prosecution to fall within the five-year limitations period, the RICO conspiracy charged must have continued at least through May 25, 1994.

In the sixth superseding indictment, under which Spero was ultimately tried, the Government alleged that Spero, while conducing the affairs of the Bonanno Organized Crime Family, conspired in violation of 18 U.S.C. § 1962(d) to engage in five specifically enumerated racketeering acts prohibited by 18 U.S.C. § 1962(c). It is uncontested that Racketeering Acts # 2-5 charged in the indictment (which acts consist of three murders and conspiracy to participate in an illegal gambling enterprise) were all completed by the end of 1993. With respect to Racketeering Act # 1, the Government charges that Spero engaged in a conspiracy to make and collect extortionate extensions of credit between January 1983 and May 1999.¹ This allegation, if proven, would bring the charged conduct within the limitations period. Spero asserts, however, that the Government failed to prove that any of his loansharking activities, which were primarily associated with an illegal gambling enterprise that folded in December 1993, took place on or after May 25, 1994.

The District Court held that Spero's arguments were precluded by our precedent in United States v. Salerno, 868 F.2d 524, 534 (2d Cir.1989), which in turn relied on United States v. Persico, 832 F.2d 705, 713-14 (2d Cir.1987). The Court understood these cases to stand for the proposition that once the Government established that Spero continued to act as a member of the Bonanno Organized Crime Family after May 25, 1994, the RICO conspiracy with which he was charged was deemed to have operated after that date as well—regardless of when Racketeering Act # 1 took place. Spero, however, asserts that the District Court misapprehended these precedents. His counsel maintained at oral argument before the District Court that the view of the law ultimately adopted by that court is untenable because it would mean that "once you joined an organized crime family, the conspiracy would continue in perpetuity until you left the family, and that's not what a RICO conspiracy is." Tr. of Oral Arg., Dec. 14, 2001, at 71-72.

Assuming without deciding that Spero's statute of limitations claim was properly raised in the District Court,² it is unnecessary to determine whether the District Court correctly interpreted Persico and Salerno because, as we explain below, we hold that Spero has failed to rebut the presumption that the loansharking conspiracy charged in Racketeering Act # 1 continued past May 25, 1994. Accordingly, Spero's prosecution was timely because Racketeering Act # 1 is presumed to have continued past May 25, 1994.

Several of our sister circuits have held that where a conspiracy statute does not require proof of an overt act (as 18 U.S.C. § 1962(d) does not) and "[w]here a conspiracy contemplates a continuity of purpose and a continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has been terminated[,] and its members continue to be conspirators until there has been an affirmative showing that they have withdrawn." United States v. Mayes, 512 F.2d 637, 642 (6th Cir.1975) (emphasis added), quoted in United States v. Maloney, 71 F.3d 645, 660 (7th Cir.1995); and United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir.1993); see also United States v. Gonzalez, 921 F.2d 1530, 1548 (11th Cir.1991). We agree. Cf., e.g., United States v. Flaharty, 295 F.3d 182, 192 (2d Cir.2002) (holding, where an overt act is required, that a conspiracy is presumed to continue until the last overt act); United States v. Diaz, 176 F.3d 52, 98 (2d Cir.1999) (same).

The generalized loansharking activity alleged in Racketeering Act # 1 is precisely the type of activity that "contemplates a continuity of purpose and a continued performance of acts." Maloney, 71 F.3d at 660. Indeed, we have previously noted that "acts of extortion and illegal debt collection inherently exude a `pattern' and a threat of continuing criminal activity." United States v. Minicone, 960 F.2d 1099, 1107 (2d Cir.1992). Accordingly, once the Government met its burden of proof by establishing that the loansharking conspiracy existed, it was entitled to a presumption that the conspiracy continued until defendant demonstrated otherwise. The burden shifted to Spero to prove affirmatively that the loansharking conspiracy alleged in Racketeering Act # 1 was terminated before May 25, 1994, or that he withdrew from the conspiracy prior to that date, in order to sustain his statute of limitations claim. See Flaharty, 295 F.3d at 192 (holding that "where the government has shown that a conspiracy existed," it is the defendant's burden to prove "that the conspiracy was terminated or that [the defendant] took affirmative steps to withdraw").

Spero thus had to prove either (1) that the objectives of the conspiracy were accomplished prior to May 25, 1994 or (2) that he abandoned the conspiracy prior to that date. See Persico, 832 F.2d at 713 (holding that a RICO conspiracy continues until the objectives of the conspiracy are either "accomplished or abandoned"); see also United States v. Rastelli, 870 F.2d 822, 838 (2d Cir.1989) (same). With respect to the first of these possible showings, because the alleged objective of the conspiracy was an open-ended attempt to extort money through loansharking, Spero needed to present evidence from which the jury could have found that the goals of the conspiracy were accomplished in some final manner. Although Spero attempts to frame the loansharking acts alleged in Racketeering Act # 1 as limited exclusively to actions taken in connection with an illegal gambling enterprise that folded in 1993, the indictment is not so limited. See note 1, ante. The fact that the gambling enterprise folded in 1993 is insufficient to establish that Spero's loansharking activities were complete as of that date, given the allegations in the indictment, which do not link his alleged loansharking activities to the illegal gambling enterprise. With respect to the second showing, Spero produced no evidence that he affirmatively renounced the goal of extorting money through loansharking. To the contrary, the evidence presented at trial would tend to support the opposite conclusion—namely, that he never renounced the goals of the loansharking conspiracy.

In the absence of proof that the goals of the loansharking conspiracy alleged in Racketeering Act # 1...